Law, Morality, and Constitutional Justice: Between Robert Alexy and Carlos Santiago Nino
by Giovanni Bisogni
pp. 266-289 Issue 11 (6,1) – January-June 2019 ISSN (online): 2539/2239 ISSN (print): 2389-8232 DOI: http://dx.doi.org/10.14718/SoftPower.2019.6.1.13
Abstract
When we have to do with constitutional review, it is quite common to ask whether it is judicial in character not only formally but substantively too.
The article aims to shed light on how two prominent legal philosophers – Robert Alexy and Carlos Santiago Nino – approach this problem. A complementing perspective is the strong point in coupling Alexy’s conception of constitutional justice with Nino’s: both regard the necessary connection between law and morality as a source of justification for constitutional review and as the main argument to restrict the discretion arising from indeterminacy of constitutional norms; however, the different way they interpret that connection helps understanding that it may be the problem to be solved rather than a solution to the problem.